Only some of them are crimes

By Kelly Egan, Ottawa Citizen

Originally published: December 3, 2012

And if there were criminal charges every time we had a lapse in judgment on the road, we’d all be in jail.

A case that ended in an Ottawa courtroom last week was intriguing for the larger question it did not pose: why do we criminalize some mistakes, but not others?

Giuseppe Oppedisano, 51, was acquitted of dangerous driving causing death in a collision at Parkdale Avenue and Scott Street that killed Mario Lague, 52, a senior political aide.

It was early morning. There was no issue of impairment. The evidence indicated that Oppedisano began his left turn from a less-than-perfect location in his lane on Scott, may have failed to signal and didn’t properly account for Lague’s oncoming motorcycle. "Imprudent," the judge said.

The verdict was probably the right one, deeply unsatisfying as it may be to loved ones. As motorists, we are, in effect, legally allowed to commit errors, even serious ones, without ending up in handcuffs.

If Lague were driving a car, this probably ends up as a forgettable rush-hour accident, maybe with minor injuries and a traffic ticket. Instead, the man was facing up to 14 years in prison.

Truth is, we make honest mistakes every day, without an expectation of criminal consequences. A tired nurse mixes up medication. A distracted lifeguard somehow misses a swimmer in distress. A daycare worker doesn’t see the choking toddler or the little one in the pool.

Do we put them all behind bars?

In September, I was driving to work when an older woman sailed through the red light at Carling Avenue and Pinecrest Road, smashing the front end of my car as I turned left on the green arrow.

Scared me to death. In the pouring rain, the 911 operator asked me to check on her for injuries. When she rolled the window down, she could hardly speak, so shaken was she.

Nobody was hurt, fortunately. Is anything served by putting her on trial?

She looked like a kindly grandmother having a lousy morning.

Was her sin any worse than Oppedisano’s? Not really. Put me on a bike and maybe I’m dead.

It is a thorny question as to how we codify crimes, misdemeanours and stupid mistakes. There is a lesser "careless driving" charge under the Highway Traffic Act, and plenty of sections on failure to do this or that.

But one wonders whether "dangerous driving" is either the wrong offence, too difficult to prove or just badly misunderstood, a hair split too fine.

(The Crown needs to prove "a marked departure" – not a "mere" departure – from the civil or reasonable norm of driving under the circumstances in question, according to the Supreme Court of Canada.)

Recall the case in 2007, when a taxi driver was acquitted of dangerous driving causing death in an accident that claimed his passenger, a 20-year-old woman with a bright future. She had prudently decided to take a cab after a party. The driver blew through a red light on Heron Road and plowed into a police cruiser crossing on the green. Verdict? Not guilty.

Indeed, the statistics indicate that the Crown and police do not often pursue criminal charges against motorists for driving dangerously.

For the years 2007 to 2011, the number of charges for dangerous driving causing death in Ottawa were, in order: three, two, zero, three and one. Other cities are similarly low.

Charges of dangerous operation of a motor vehicle, vessel or aircraft were not what you’d call numerous (given, let’s face it, the number of nuts on the road): 112, 126, 133, 121 and 104 for the same five years.

So, for all of that dangerous driving going on out there – and don’t we see it every day? – the state is not pursuing criminal sanctions.

(This is possibly another debate, as speeding and tailgating are clearly "dangerous," but apparently don’t meet the standard of "marked departure" from the norm.)

So, something seems off here. Not only does the punishment not fit the crime, the crime doesn’t even fit the crime.